Stephens v. Hallstead

Citations

• 58 Cal. 193

Syllabus

<p>Action to Recover Personal Property—Justification—Fraud—Answer—Pleading—Burden of Proof—Evidence.—In an action for the recovery of personal property, the defendant in his answer, after denying plaintiff’s ownership, justified the taking under an attachment (followed by a judgment and execution) against one F., the plaintiff’s vendor, who, it was alleged, was at the time of the taking the owner and in possession of the property; and further alleged that the claim of the plaintiff was based upon a pretended transfer of the property to him by F., and that this transfer—as was known to the plaintiff—was made for the purpose of hindering, delaying, and defrauding the creditors of F. The Court did not find upon this last allegation; but, besides finding the other facts alleged in the answer, found that the sale from F. to the plaintiff was not followed by an immediate delivery, or by an actual and continued change of possession; and on appeal it was contended that the issue of fraud tendered by the defense was one of actual and not of constructive fraud; and that there was no finding upon the issue actually tendered, but a finding of a constructive fraud only.</p> <p>Held, that the finding was within the issue made by the plea of justification. When plaintiff showed a bill of sale from F., the defendant, by showing the matters pleaded in justification, put upon the plaintiff the burden of showing an actual delivery and continued change of possession; that he was not required in this defense to plead anything as to the nature or origin of the title of the plaintiff; and that his allegation on this point might be disregarded as surplusage.</p>